Among other consequences of the New Hampshire Supreme Court decisions in Claremont School District v. Governor,1the relationship between the legislature and the judiciary has been subjected to strain and reexamination. While comity (or the lack thereof) among the institutions of government is an important feature in a representative system of government, the basis for the relationship of the judiciary to the legislature is the constitutional limitations imposed on the legislative and judicial powers. When one considers that the legislature is proactive and the judiciary is reactive, the potential for tension between the branches is magnified. It is not surprising that sharp differences of opinion arise between the legislature and the judiciary even on basic issues including the proper role of the court in determining and imposing constitutional limitations.

Discourse following the Claremont II decision2 has sometimes reached extravagant lengths. The legislature has been urged by some of its members to simply disregard the Claremont II decision on grounds that it exceeds the proper authority of the Court. Others asserting the same claim have been more modest in their reaction by acknowledging that the legislature cannot ignore the order of the court without creating a constitutional crisis. What is most interesting is the extent to which persons asserting academic and scholarly credentials have expressed unprecedented views regarding constitutional limitations without challenge from the legal community except from the court itself and those lawyers most immediately associated with the prevailing side in the Claremont litigation.

This article reviews the New Hampshire Constitutionís limits on legislative power and the New Hampshire legal traditions in applying those limits. In the last analysis, critics of judicial power may discover that their objections are not that the Supreme Court overstepped proper bounds in the Claremont decisions but rather that the Court possesses the power to interpret and apply constitutional limits on the exercise of legislative power.

THE TRADITIONS

Seven months before the Declaration of Independence was approved in 1776, New Hampshire framed its first constitution based on the dual propositions that government should be subject to popular control and that the power of government should be limited. That first constitution was brought under heavy criticism for a variety of reasons including especially the failure to provide adequate guarantees of the rights of the people in the face of a powerful government. A constitutional convention labored through several drafts and "final" products before it produced a version acceptable to the electorate in 1783. The most prominent feature of that constitution, the same one which has governed New Hampshire since 1784, is a detailed Bill of Rights guaranteeing each citizen an array of rights.

An integral element of the system of guaranteed rights for individuals in the New Hampshire Constitution is a system of checks and balances designed to prevent any single branch from exceeding the limits of its powers.3 And an important feature of the separation of governmental powers was the creation of an independent judiciary.4 That basic arrangement of power spelled out in the 1784 Constitution remains unchanged over 216 years notwithstanding that the people of New Hampshire have produced approximately 250 changes through nearly 150 amendments in that period of time. It can be noted that a large number of the changes and amendments occurred in 1792 when the Constitution and some of its institutions were revised. Left untouched by that major effort and all efforts since was the basic arrangement of government with limited powers, of guarantees for personal freedoms and independent branches of government with the responsibility to check the power of co-equal branches.

These generalities regarding the arrangement of power in the state government do not answer the hard questions. Precise limits on legislative power can be found and are discussed below. Precise limits on the judicial power are harder to come by since the constitution is not explicit. The power and procedure for the removal of judges can be found in the constitution,5 but the exercise of judicial power is addressed only is the most general and negative terms where the grounds for impeachment are laid out: bribery, corruption, malpractice or maladministration. Thus there remains plenty of room for debate about the enforcement of limits on legislative and judicial power. That debate is most meaningful when it arises out of the actual function of the system and not out of academic questions or abstract propositions. Thus more is to be learned by observation of the operation of the system over the more than 200 years of history than can be gained from the self-serving positions that might be asserted in a contemporary debate over a single decision.

DISCUSSION
Judicial Review

The concept of judicial review in the ordinary sense of judicial consideration of the acts of the legislature was a routine matter in the common law by the time New Hampshire declared its independence and framed its early constitutions in the last quarter of the 18th Century. Judicial review was an accepted proposition when it amounted to interpretation and application of the law. The evolving principles of statutory construction guiding the court in its "review" showed great deference to the intention of the legislature with an eye toward developing an interpretation that would carry out the legislative purpose.

The advent of a written constitution with expressed limits on the power of government raised a "new" dimension of judicial review. The prospect of challenges to an act of the legislature on grounds that the constitutional limits had been exceeded cast the court in a novel position - one unlike routine judicial review. Instead of seeking an interpretation that would carry out the legislative purpose (routine judicial review), the courtís task could well put it in the position of declaring the legislative purpose to be invalid or declaring that the means chosen by the legislature to achieve its purpose did not satisfy constitutional standards.6

Tension is an unavoidable by-product of the scheme. Legislators regard themselves as reasonable and intelligent persons able to read and understand the constitution. Further, legislators act under a commission from the electorate and stand accountable in the court of public opinion. It is not surprising that offense would be taken at the prospect of a small group of executive branch appointees holding their positions for life without any accountability to the electorate declaring invalid the considered judgment of hundreds of elected officials.7 But that is exactly the constitutional arrangement which is the hallmark of American constitutions at both the federal and state levels.

Further offense may be taken by the few options open to the legislature when it believes the court has over-stepped the bounds of judicial authority. The straightforward political solution is an amendment to the constitution explicitly addressing the decision of the court. But the New Hampshire Constitution makes amendment a difficult and laborious task and requires the support of a super majority at every level of the process.8 On the other hand, amendments to the New Hampshire constitution are relatively frequent and numerous; thus response to an unpopular judicial decision by way of constitutional amendment is not out of the question.

Beyond amendment, legislators are left only with the power to remove the judges who made the unpopular decision. Removal can be accomplished by either impeachment or "address." The means of "address" is provided by Part II, Article 73:

The Governor with consent of the council may remove any commissioned officer for reasonable cause upon the address of both houses of the legislature, provided nevertheless that the cause for removal shall be stated fully and substantially in the address and shall not be a cause which is sufficient ground for impeachment, and provided further than no officer shall be so removed unless he shall have had an opportunity to be heard in his defense by a joint committee of both houses of the legislature.

The latter part of Article 73 regarding the procedure for removal was added to the constitution in 1966. That procedure was recently employed in a wide-ranging effort to remove the Chief Justice. A part of that effort included an assertion that the Chief Justice had exceeded proper judicial authority in decisions involving the school funding litigation. The Joint Committee of the House and Senate declined to recommend removal.

Impeachment is left to common law for the most part but the power to investigate the need for impeachment is vested in the House which is designated as "the grand inquest of the state."9 Article 17 and Article 38 of Part II constitute the Senate as a court "with full power and authority to hear, try, and determine, all impeachments made by the House of Representatives." The Senateís constitutional power to try impeachments is encumbered with important due process protections for officers subjected to the impeachment process.

Looking back over the two centuries of experience with this arrangement, it should first be noted that constitutional judicial review may have first appeared in New Hampshire as early as the last decade of the 17th Century. The great national confrontation on judicial review in 1803, Marbury v. Madison,10 began as a power struggle between the executive and judiciary but as the case evolved, the courtís decision declared an act of the Congress unconstitutional after an elaborate examination of the reasons why judicial power to do so was necessary.11 A similar event marks New Hampshire legal history. It seems beyond serious question that the judicial power to set aside legislative acts was an accepted proposition by 1817 when the court was asked to strike down an act reconstituting Dartmouth College as unconstitutional.12 The Court in that case reached the merits of the claim without challenge to its jurisdiction. The Courtís decision favorable to the State was later reversed by the United States Supreme Court.13

It appears that New Hampshire accepted the proposition that an independent judiciary possesses the power to act as guardian of the constitutional limits and of individual freedoms. The Stateís own publication of the Constitution begins with a section entitled "Introduction and Overview of Our Constitution History" prepared by Lorenca Consuelo Rosal for the 1984 Bicentennial of the New Hampshire Constitution. Speaking to the issue of an independent judiciary, Ms. Rosal declares:

If the constitutional rules are to continue to be called by an impartial umpire we can be proud of our current system of independent judges beholden to no group or branch for their tenure in office. Judges, unlike our elected officials in the other two branches, are not meant to do what is popular, but what will protect an individual citizenís constitutional rights in the face of majority clamor.

Choice of words aside, the role of the court described is one which is supported by history and practice and is a natural consequence of the arrangement of powers in the constitution.14

EXPRESSED LIMITS ON LEGISLATIVE POWER

Because American thinking about government since the late 1700ís is firmly entrenched in the concept of limited government, all of the constitutional provisions which expressly empower the legislature to act can be seen as limitations on government. The language of the New Hampshire Constitution does not clearly support that proposition. The major source of legislative power in the New Hampshire Constitution is found in Part II, Article 5:

And further, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing thereof....

Two critical propositions emerge from that organic arrangement. First, the legislature is given a broad scope of judgment upon which to base its decisions regarding the welfare and governance of the state. Second, the grant of power is limited by the values and provisions expressed elsewhere in the constitution. While some might be inclined to argue that a "balance" of these propositions is appropriate to assure some notion of co-equal powers in the branches of government (given the fact that the judicial branch imposes the constitutional limits), the language of the mandate for legislative power does not provide for balancing away the constitutional values. Rather, the language expressly limits the broad judgment of the legislature to those which are "not repugnant or contrary" to the constitution.

Of course, the difficulty arises in determining when a legislative judgment becomes "repugnant" or "contrary" to the constitution. For some, there may still be a lingering question of who should make the determination that the legislative judgment is contrary to the constitution; ask another way, that questions asks who should interpret the constitution. As noted above, at least since 1817, New Hampshireís Supreme Judicial Court has asserted that power without serious erosion over the intervening years.

The crux of recent controversy surrounding legislative authority has been the determination of the stateís obligation to provide educational services and the judgment of the legislature regarding the means by which taxes would be imposed. Those central issues in the Claremont cases highlight the unavoidable consequences of imposing constitutional limits on legislative action; the policy determinations made by the legislative majority, presumably representing the majority of the electorate, are overridden by the interpretation of the constitution by a small unelected group of judges. On the one hand the legislators have expressed a judgment on policy which they view as "wholesome and reasonable" within the authority granted by Part II, Article 5 of the constitution. On the other hand, the justices are confronted with a legal dispute in which they are asked to interpret a specific provision of the constitution to determine whether the legislative judgment is "contrary" to the requirements of that provision.

The Courtís process for addressing the issues in the Claremont cases was not invented for the occasion. A starting point in judicial precedent could well be the Dartmouth College Case.15 In that situation the legislature enacted a law empowering the Governor to expand the Board of Trustees of Dartmouth College by appointment of additional members. The sitting Trustees challenged the law essentially on grounds that the College was a private institution and not subject to state control. In laying the foundation for its consideration of the specific issues, the Court spelled out some broad principles:

A complaint that private rights protected by the constitution have been invaded, will at all times deserve and receive the most deliberate consideration of this court. The cause of an individual whose rights have been infringed by the legislature in violation of the constitution becomes at once the cause of all. For if a private right be thus infringed today, and the infringement be sanctioned by a judicial decision tomorrow, there will be next day a precedent for violation of the rights of every man in the community; and so long as that precedent is followed, the constitution will be in fact to a certain extent repealed.16

Thus began the long line of cases in which the New Hampshire Supreme Court has regarded its function to definitively include the task of measuring the constitutional bona fides of legislative enactments.

The court in the Dartmouth College Case had high expectations of the legislature and the respect which might be afforded its decisions:

An unconstitutional act must always be presumed to have been passed inadvertently or through misapprehension; and it is equally to be presumed that every honest legislature will rejoice when such an act is declared void, and supremacy of the constitution maintained.17

While the logic of the courtís assessment may be impeccable, human nature pushes in a different direction. Legislators have traditionally resented the reversal of the will of the legislators even when the constitutional imperatives are not seriously questioned. There remains the question of proper limits on the judicial power.

The Dartmouth College court was not unmindful of the call for limits on the judicial power but its view may not be reassuring:

But we must not forget for a moment that the question submitted to our decision in such cases is always one of mere constitutional right; sitting here as judges, we have nothing to do with the policy or the expediency of the acts of the legislature. Legislative power is limited only by our constitutions and by fundamental principles of all governments and the inalienable rights of mankind.18

But in construing a "doubtful" clause in the constitution the court might properly weigh the "conveniences and inconveniences" which are produced in an effort to understand the framersí intent.19

As a further restraint on judicial interference with legislative policy, the court suggested a standard of review that was deferential to the legislature. The law comes to the court with a presumption of validity and can be overturned only when the court develops a "clear and strong conviction" of incompatibility with the constitution. The justification offered mirrors the justification for judicial intervention (inadvertent or misapprehension leading to repeal): blocking the legitimate exercise of legislative power imposes a limitation not intended by the people.20

The Claremont II21 decision on taxation models this system in operation. The legislative judgment on raising public money to support education (apart from recognition of any legislative duty to do so) allowed taxes to be imposed on a local basis which in turn permitted widely differing tax rates and burdens. Putting aside an important factual determination that public school taxes were state taxes not local taxes, the court was asked to determine whether the legislative tax scheme was "repugnant" to the provisions of Part II, Article 5 which provides power to "impose and levy proportional and reasonable assessments, rates, and taxes...." Once the Court determined that the school taxes were statewide taxes, it resorted to its case precedents interpreting the requirements of the constitution:

This article requires that "all taxes be proportionate and reasonable - that is, equal in valuation and uniform in rate." Opinion of the Justices, 117 N.H. 749, 755 (1977)[citation omitted]; see Johnson & Porter Realty Co. v. Commír of Rev. Admin., 122 N.H. 696, 698 (1982) [citation omitted} (tax must be in proportion to actual value of property and must operate in a reasonable manner.)....22

The Courtís first effort in reference to the language of the constitution and to the legal tradition in interpreting that language was to determine the constitutional policy. That done, the task then became to determine whether the legislative policy was "repugnant" to that constitutional policy. As uncomfortable as many may find the result, the courtís processes in declaring a limit on legislative power were the time-honored processes by which constitutional values and limits are imposed.

Without attempting an exhaustive treatment of the time-honored traditions in this area, a few examples are helpful in showing both the general rhetoric and the application of that rhetoric. In 1902 the parents of a sickly child kept the child at home rather than sending her to public school as required by the compulsory attendance law. Unfortunately, the parents did not communicate with the school officials and were prosecuted for violation of the law. In defense of the charges the parents argued that the law was an unconstitutional violation of their parental rights. The trial court dismissed the defense as did the Supreme Court.23 The court reasoned that not all claims of infringement of individual rights were sufficient to limit the legislative power to enact "wholesome and reasonable" regulations. Part I, Article 3 of the New Hampshire Constitution spells out the concept:

When men enter into a state of society, they surrender up some of their natural rights to the society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.

Thus even though the parents could validly assert a common law right to act for the child, such a claim did not necessarily establish that the state law was repugnant to the constitution. The court went on to acknowledge both the general legislative power to enact reasonable laws and the stateís duty to educate the children of the state. Under the circumstances, the legislature has the exclusive power to determine the reasonableness of the law. The courtís role is limited to placing that law beside the constitution and determining whether the two can stand together.24

The court offered a more complete explanation of the process in Carter v. Craig25 where a state tax on property passed by will was challenged. The court stated the issue before it in somewhat absolute terms: does the Bill of Rights forbid making laws that in any way limit rights secured by it or only those laws that are unreasonable.26 Justice Young for the court began by explaining that law is made for a purpose and that the constitution as a species of law was made by the people for the purpose of promoting the general welfare of the community as a whole and not the welfare of any particular individual. The general power conferred in Part II, Article 5 would be rendered meaningless if the Bill of Rights precluded any law infringing individual liberty.27 The limits on legislative power might go to either the purpose of the law or to its means; if either offends constitutional values, the law is repugnant to the constitution and is invalid.28

In Carter v. Craig, the question of the "reasonableness" of the means of raising taxes was in the first instance for the legislature to judge. But if the law is so unreasonable that no fair-minded person could think it reasonable, the court would have to declare it void.29 We should first observe that the court in Carter imposed an even more rigorous and deferential standard than the "clear and convincing" standard in the Dartmouth College Case. Second, the question of reasonableness of a law might change under the circumstances and might be influenced by the understanding of the law by the framers of the constitution. The court in Carter v. Craig addressed that concern by noting that the validity of the law is determined by its reasonableness at the time it is enacted and not by reference to circumstances when the constitution was framed; indeed the framers must have understood that circumstances would change when it imposed the "reasonableness" standard.30

A more recent case is illustrative of the fact that the basics in this process have not changed dramatically although the attitudes toward individual rights have undergone a major overhaul. In 1986 the legislature considered legislation to prevent harassment of hunters, fishermen and trappers. The House asked for an advisory opinion on the provisions of the bill including one that made verbal harassment unlawful.31 The Court readily recognized that the regulation of hunting, fishing and trapping is a proper subject of the stateís police power inasmuch as the police power extends to the protection of lives and the health, comfort and quiet of all persons as well as to the protection of property.32 However, persons and property are subject to reasonable restraints to secure the general comfort, health and prosperity.33 That said, the Court found that the exercise of the police power (pursuant to the "wholesome and reasonable" provision of Part II, Article 5 of the New Hampshire Constitution) may not unreasonably interfere with the individual rights to free speech provided in Part I, Article 22 of the New Hampshire Constitution.34 Based on the breadth of the restrictions on speech and the vagueness of terms in the proposed regulation, the court found the bill contrary to the constitution and hence invalid.

SEPARATION OF POWERS

A "separate" limitation on legislative powers is found in the constitutional requirement for the separation of powers. Of course, the separation of powers concept is equally applicable to the exertion of power by any of the branches of government. But the realities are that the issues before the courts almost invariably involve the assertion that the legislature or the executive is overstepping its bounds. For purposes of this article, a few illustrations involving the clash between legislative and judicial powers serve to illustrate the force of the doctrine as a limitation on legislative powers. Two modern cases surround judicial concerns over the control of the courtroom.

In 1983 the court was asked to review a conflict between a Superior Court policy barring firearms in the courtroom and a state statute specifically authorizing police officers to wear firearms in the courtroom notwithstanding "any other rule, regulation or order."35 The courtís per curiam opinion offers a discussion of the history and rationale for the separation of powers doctrine in our constitutional system. In particular, the court identifies the purpose of the doctrine in terms of the protection of the integrity of the democratic system and the assurance of political accountability.36 The need for the doctrine is founded in the pre-constitutional experience in New Hampshire and sister states during which the exercise of judicial and executive power by the legislature led to abuses.37 Turning to the structure of the New Hampshire Constitution, the court declares the obvious by noting that the legislative power to enact reasonable regulations found in Part II, Article 5 is conditioned by conformity with the constitution including those parts of the Bill of Rights assuring an independent judiciary38 and requiring separation on powers.39

From that foundation the court employed standard rhetoric of limitation on legislative powers. An individual, LaFrance, claimed his rights were infringed by the law authorizing a police witness to wear firearms while giving testimony in court. The judicial function is to resolve the dispute by matching the act with the values in the constitution and testing for compatibility.40 In explaining the impact of the process, the court said:

The courts have the duty to interpret constitutional provisions. This duty may result in decisions that run counter to the present desires of the voters or their elected representatives. This is so because the constitutions of our states and of the nation are intended to be restraining documents so that the exercise of power by the majority does not go unchecked. We do not have unqualified majority rule, we have majority rule with protection for minority and individual rights. Without this limitation we would have a tyranny of the majority and lose our liberty. [emphasis in original].41

The basis for the courtís approach to separation of powers has ancient roots.

An early clash between the legislature and the court occurred in 1817 when the legislature was persuaded to order a new trial for a disappointed litigant in a probate contest. The case had been decided by the probate court and reviewed by the appellate court (then called the Superior Court); subsequently a new trial was sought but denied by the courts. Mrs. Merrill, the disappointed litigant, turned the legislature which enacted a law ordering a new trial. When Sherburne was served with the summons for a new trial he moved to quash on ground that the law was unconstitutional.42 Finding the effect of the law to be the reversal of a judicial judgment, the court ruled that the legislature had overstepped the bounds of legislative function and in so doing, acted contrary to separation of powers limitations.43 A reading of the Merrill opinion reveals that the treatment of the issues in LaFrance and the instruction it offers are in near perfect harmony.

A more recent clash between the judicial branch and the legislature surrounded the determination of who should provide courtroom security.44 No novel doctrinal developments mark the courtís treatment of the issue. In summarizing past applications of the doctrine, the court looked to the function involved and the effect of the actions taken. Citing LaFrance, the court held that the power of one branch may not be seized by another branch in a way that threatens the freedom and sovereignty of the people.45 Citing an opinion of the Justices, the court added that the doctrine of separation of powers is violated when one branch usurps an essential power of another branch. 46 Ultimately, the court concluded as a matter of fact that the control of the courtroom including control over security personnel was an essential judicial function which the legislature could not invade without violating separation of powers limitations.47

CONCLUSION

The cases involving limitations on legislative power illustrate that tensions in this area most likely do not involve conflicting understandings of the constitution. It seems beyond argument that the court can and should function to enforce constitutional provisions and that the legislatureís power to enact "wholesome and reasonable" laws must be limited by the constitution. The tensions that result from judicial action to limit the legislature are noted in the earliest cases and seem inescapable given the fact that each branch serves as a check on the other and that human nature does not take kindly to being overruled. The real nub of the matter is the treatment of the specific issues that are involved in cases rather than the treatment of the broad constitutional scheme of limitations. The Claremont cases involve basic disputes about the line between constitutional law and policy. No bright line exists and differing points of view produce different conclusions. Most legislators and the court agree that there is a duty to provide education but when the court quantifies that duty, as it must to answer the legal question raised by the litigation, legislators may see that as establishing educational policy, a matter within the legislative prerogative. Similarly, the courtís conclusion in Claremont II48 that the taxes imposed to support education were actually state rather than local taxes was based on the courtís application of judicial standards while the legislators focused on the mechanics of the tax collection system to conclude that the court was wrong. Once again, the tension arises not from the system of limitations but from the specifics of the subject matter.

While separation of powers can be seen as an independent doctrine of limitations, it is more properly understood as yet another constitutional provision which limits the legislative power to enact "wholesome and reasonable" laws. If separation of powers as a limiting proposition is distinct it is because it is a structural concern going directly to the relationship between the branches of government. But in considering limitations on legislative power, separation of powers is not different from free speech, equal protection or any other constitutional provision which provides a standard against which legislation can be measured. All of those limiting values have a developed body of law not captured in the specific language of the constitution. The invocation of the developed law surrounding the constitutional value may appear to the legislator and the layperson as judicial interference with legislative authority. What we have here is the classical failure to communicate. Would that it were that simple.

ENDNOTES

1.

The principal decisions in the Claremont series are the opinion affirming a positiveobligation to provide an adequate education at 138 NH 183 (1993) and the opinion holding that the state breached its duty and that the state funding of public education is unconstitutional at 142 NH 462 (1997).

2.

"Claremont II" refers to the invalidation of the school funding scheme found at 142 NH 462 (1997).